December 05, 2016

So as not to bury the lede, here’s the short version: Last week, the California Supreme Court overruled two recent Court of Appeals decisions to hold that a company can be held liable for negligence liability when it exposes an employee to asbestos fibers, the employee takes the fibers home on his or her clothing, a member of the household is exposed to the asbestos and as a result, develops a disease and dies.

The case is Kesner v. Superior Court, December 1, 2016, S219534. It constitutes a ruling in favor of asbestos plaintiffs on an issue that has been legally hot and factually contested all over the United States. When applying the decision to a take-home exposure asbestos case, all one needs to know is the Cal Supremes ruled there was a legal duty owed by employers to members of their employees’ households not to expose those household members to asbestos fibers.

But for other tort practitioners, the Kesner case is a good example of how the seven factors from the nearly 50 year-old decision of Rowland v. Christian (1968) 69 Cal.2nd 108 will be used for the court to determine whether there is a legal duty – a decision always made by the court, not the jury. More about this after the jump.

As mentioned above, the starting point here is the 1968 Cal Supremes decision of Rowland v. Christian, which shows us how far we’ve come. James Rowland was a house guest of Nancy Christian, whose apartment had a cracked porcelain faucet handle in the bathroom. Rowland injured tendons and nerves in his hand when the cracked handle broke, and sued Christian for negligence. She defended on the basis of a perceived social guest doctrine, contending that she owed no duty to a social guest such as Rowland because he was an “invitee.”

Everyone is responsible, not only for the result of his willful acts, but also for an injury occasioned to another by his want of ordinary care or skill in the management of his property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself. ...

The Supremes identified seven policy factors a Court should examine in determining whether to make an exception to this Civil Code provision and find no duty: the foreseeability of harm to the plaintiff, the degree of certainty plaintiff suffered injury, the closeness of the connection between defendant’s conduct and the injury suffered, moral blame attached to the defendant’s conduct, the policy of preventing future harm, the extent of the burden on the defendant and the consequences to the community of imposing a duty to exercise care, and the availability, cost and prevalence of insurance for the risk involved.

Based on Civil Code section 1714 and these seven “Rowland v. Christian factors,” the Supremes had no trouble finding that Christian owed a duty to Rowland for the broken faucet handle and his related injuries.

Later, in Bigbee v. Pacific Telephone & Telegraph (1983) 34 Cal.3d 49, they used the same principles to rule that the telephone company had a duty not to locate a telephone booth 15 feet from a parking lot where a drunk driver might jump the curb and run into it, injuring the in the booth just trying to make a call. (Young reader: “Hey CBL, what’s a phone booth?”)

And as discussed here, in Cabral v. Young’s Market (2011) 51 Cal.4th 764, the Supremes used the same doctrine to rule a truck driver had a duty not to park his truck on the dirt shoulder 16 feet off the Interstate freeway while he was stopped for a snack, resulting in his being struck by the decedent's pickup which, while going 70 - 80 miles per hour, swerved off the freeway and into the shoulder, rear-ending the truck driver.

And that’s what happened in Kesner, as Cal Supremes applied each of the Rowland v. Christian factors this way:

Foreseeability of harm: the Court pointed to the 1972 OSHA regulations concerning asbestos exposure, and Federal and industrial hygiene recommendations well before that. It also noted that foreseeability didn’t require scientific consensus concerning the risks of take-home exposure;

Degree of certainty: death caused by mesothelioma is certain, and compensable under the law.

Closeness of connection between the conduct and injury: Here the Court addressed the fact that intervening conduct (e.g., the employee’s taking fiber home on his or her clothing after the employer’s negligence) was necessary to make the connection, and said it didn’t matter because this taking-home was foreseeable.

The policy of preventing future harm: The relevant time period is when the misconduct occurred, and in the 1970’s, imposing liability for take-home asbestos exposure would have prevented future harm.

Moral blame: Moral blame applies, because commercial users of asbestos benefited financially from its use and had greater information and control over the hazard than did the members of the employees’ households.

Insurance: Yes, the Court recognizes liability insurance presently excludes indemnification for asbestos liability. But it didn’t in the 1970’s, and that is what matters.

Burden and cost to the community: The defendants made the typical tort case argument that expanding liability would create a huge increase in the already “elephantine mass of asbestos cases.” But the argument fell on deaf ears, the Court holding that what mattered was not the burden or cost of litigation, but the burden and cost of avoiding exposure back in the 1970’s when the exposures took place. And the Court saw nothing significant here.

To CBL, this decision, combined with the phone booth and resting truck driver decisions in Bigbeeand Cabral, mean not just that there is liability for take-home asbestos exposure, misplacement of a telephone booth and resting on the shoulder too close to the freeway. They mean that the Rowland v. Christian factors are irrelevant. If the injury is in some minimal way a foreseeable result of the negligence – even if the foreseeability requires 20-20 hindsight, there is going to be a legal duty, and liability for breaching it. Period.